El-Khalidi v. Arabian American Development Co.

On
Appeal from the 88th District Court Hardin County, Texas
Trial Cause No. 55018

Before
McKeithen, C.J., Kreger and Horton, JJ.

MEMORANDUM OPINION

HOLLIS
HORTON, JUSTICE.

Hatem
El-Khalidi appeals the dismissal of his suit against Arabian
American Development Company (AADC).[1] In five issues, El-Khalidi
contends that the trial court erred (1) by denying his
request seeking the trial court's intervention to either
delay his deposition to a date he could travel or to allow
his deposition to be taken by remote electronic means; (2) by
failing to test lesser sanctions before dismissing his suit;
(3) by dismissing his suit for want of prosecution without
first notifying him that his case could be dismissed and
without conducting a hearing to allow him to be heard
regarding the explanation he was entitled to offer to justify
the delays that occurred in the prosecution of his suit; (4)
by entering a judgment when insufficient evidence supports
the express and implied findings required to support a
decision to dismiss his case; and (5) by ruling on AADC's
motion for sanctions before September 5, 2016, the date that
AADC notified El-Khalidi that its motion would be submitted
to the court to be decided without a hearing.

Background

El-Khalidi
filed cause number 55018, the suit that is the subject of
this appeal, in 2014, after having already filed an earlier
suit involving the same subject matter. The trial court
dismissed El-Khalidi's first case, cause number 52483,
which he filed in 2011, for lack of prosecution. El-Khalidi
appealed that order of dismissal, and we affirmed the order.
See El-Khalidi v. Arabian Am. Dev. Co., No.
09-13-00394-CV, 2014 WL 2152101, at *3 (Tex. App.-Beaumont
May 22, 2014, pet. denied) (mem. op).

El-Khalidi's
2014 suit was also dismissed for lack of prosecution.
Although the claims that were dismissed concerned
El-Khalidi's claims alleging that AADC had breached an
agreement that it reached with him to get him to retire, his
original petition included claims for defamation. El-Khalidi
had nonsuited his tort claims against AADC in April 2015. In
June 2015, he moved for summary judgment on his
breach-of-contract claims, which alleged that AADC had failed
to pay him the benefits it agreed to pay him to get him to
retire. El-Khalidi's motion was accompanied by two
affidavits, one that he signed and one signed by a certified
public accountant. In El-Khalidi's affidavit, El-Khalidi
provided the trial court with the terms of the agreement that
he claimed he reached with AADC in contemplation of his
agreement to retire. The accountant's affidavit contains
calculations showing the money that El-Khalidi claimed AADC
owed him under the terms of the agreement he reached with
AADC just before he retired.

After
El-Khalidi moved for summary judgment, and to respond to the
claims that El-Khalidi had made in his affidavit, AADC sought
to secure El-Khalidi's deposition. By July 2015, having
failed to secure El-Khalidi's agreement to give a
deposition in Texas, AADC filed a combined motion seeking an
order compelling El-Khalidi to give a deposition in Texas, to
prevent El-Khalidi from proceeding on his own discovery
requests to AADC until after submitting to a deposition, and
motion for sanctions. AADC's combined motion relied, in
part, on the efforts that it asserted it had made to obtain
El-Khalidi's deposition in the earlier-filed case, cause
number 52483, evidence showing that the trial court had
ordered El-Khalidi to be deposed in that cause, and the fact
that the court had dismissed El-Khalidi's first case for
want of prosecution in 2013. Id. at *2. Following a
hearing on AADC's combined motion, the trial court
ordered that El-Khalidi appear for a deposition at the
offices of AADC's attorneys, which are in Beaumont, on
January 26 and 27, 2016.

On
January 20, 2016, El-Khalidi moved to reset the January 2016
court-ordered deposition. In his motion, he asserted that he
had advised counsel that he had been unavoidably detained in
Saudi Arabia, that he had not been able to conclude his
affairs in Saudi Arabia, and that he was in the process of
preparing to move to the United States. El-Khalidi's
motion also asserts he was unable to travel due to "his
health issues, advanced age, the problems with his residency
visa in Saudi Arabia, and the inability to access his funds
due to the freezing of his bank accounts[.]"

The
record does not show that El-Khalidi requested a hearing on
his motion to postpone his deposition scheduled on January
26. Moreover, the trial court's order compelling
El-Khalidi to submit to the deposition in Beaumont states
that the deposition was not subject to being changed absent
the mutual agreement of the parties or absent the court
decision to postpone the deposition, which had be to obtained
before the date the deposition was scheduled to occur. When
El-Khalidi failed to appear for his January 2016 deposition,
AADC filed a motion for sanctions and motion to dismiss his
case. In its motion, AADC noted that the language in the
court's order prevented El-Khalidi from unilaterally
changing the date the court had ordered El-Khalidi to submit
to a deposition in Beaumont. In response to these motions,
El-Khalidi filed a motion requesting that the trial court
allow his deposition to "be taken according to a new
schedule and by remote live broadcast, " arguing that
due to his age and worsening heart condition, he could not
"safely travel to the United States at this time."

In
response to El-Khalidi's offer to make himself available
for a deposition by "remote live broadcast, " AADC
argued that El-Khalidi's request should be denied because
his problems were of "his own making." According to
AADC, El-Khalidi had persistently failed to comply with
efforts that it had made over a period spanning five years to
obtain his deposition. AADC also questioned El-Khalidi's
claim that he was too ill to travel, noting that he had
recently traveled to Jordan even while claiming he was too
ill to travel. AADC noted that El-Khalidi's response to
its motion failed to explain why traveling to the United
States would place him at any greater risk than he had faced
when he chose to travel to Jordan.

On
August 4, 2016, AADC filed a notice of submission, indicating
that its combined motions would be decided without a hearing
on September 5, 2016. On September 1, 2016, the trial court
granted AADC's motion, dismissing El-Khalidi's cause
of action with prejudice. Subsequently, El-Khalidi filed a
motion to reconsider. In his motion to reconsider, El-Khalidi
complained that he was not notified that AADC's motions
would be decided prior to September 5, 2016.

Approximately
five weeks after the trial court dismissed cause number
55018, it provided the parties with written findings of fact.
The findings state:

1. Plaintiff Hatem El Khalidi originally filed suit against
AADC on March 21, 2011 in Dallas County, Texas, and agreed to
transfer venue to this Court.

2. On June 18, 2012, this Court first ordered El Khalidi to
appear for deposition on August 7, 2012. Although the Order
stated that the date could be changed "only upon good
cause shown to this Court in advance of these dates, or upon
mutual agreement" of the parties, El Khalidi did not
appear for deposition.

3. On September 11, 2012, Defendant filed a Motion for
Sanctions, Motion to Compel, Special Exceptions, and Motion
to Strike Portions of Plaintiff's Pleadings as Frivolous.

4. On November 1, 2012, this Court conducted a conference in
chambers and ordered El Khalidi to appear for deposition by
January 31, 2013. El Khalidi again failed to appear for
deposition.

5. On April 29, 2013, Defendant filed a Second Motion for
Sanctions, Motion to Compel, Special Exceptions and Motion to
Strike Portions of Plaintiff's Pleadings as Frivolous,
and Motion to Dismiss for Want of Prosecution.

6. On July 24, 2013, the Court entered an Order granting
Defendant's Motion to Dismiss for Want of Prosecution.

7. The Ninth Court of Appeals affirmed the dismissal order on
May 22, 2014, and the Texas Supreme Court denied El
Khalidi's Petition for Review.

8. During the pendency of the appeal, El Khalidi filed the
same action against AADC in the 365th Judicial Court
of Hardin County, Texas on May 1, 2014. On Defendant's
motion, the 365th Judicial Court transferred the case back to
this Court.

9. After repeated attempts to obtain El Khalidi's
deposition, Defendant filed a Motion to Compel and Motion for
Sanctions on July 31, 2015.

10.On November 2, 2015, the Court entered an Order compelling
El Khalidi to appear for deposition on January 26 and 27,
201[6]. The Court's Order states, "these dates may
be changed only upon good cause shown to this court in
advance of these dates, or upon mutual agreement." El
Khalidi again failed to appear for deposition.

11. On February 4, 2016, Defendant filed a Second Motion for
Sanctions and Motion to Dismiss.

12. On April 13, 2016 the Court entered an Order compelling
El Khalidi to appear for deposition in Hardin County (or an
alternative location agreed upon by the parties) on or before
August 1, 2016. El Khalidi again failed to appear as ordered.

13. El Khalidi is a United States citizen.

14. E1 Khalidi has traveled outside of Saudi Arabia in recent
months for other purposes (such as to visit his sister in
Jordan), indicating an ability to ...

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